[CCWG-ACCT] Question regarding UAs

Tue May 19 20:57:20 UTC 2015

Balder,

As mentioned in my last email to Chris Disspain, I recognized that
inaccuracy as I was writing to Sam Eisner and referred to it in my email to
her, which I reproduce below for your convenience.  I'm not sure what you
mean by keeping "it simple and clear in the makings from the start."  If
you mean that this should be set forth in the Bylaws of the UA and/or the
SOAC, then I agree.

Greg

My email to Sam:

An Unincorporated Association (UA) requires at least two legal persons
(which can be people or legal entities) to be members.  In other words, you
need two legal persons to "associate" with each other. So, if we use UAs,
we'll need to have at least those two members in the UA, though we could
have many more.  They could be the Chair and Vice Chair, or they could be
two or more of the members of the SO/AC (or even all the members of the
SO/AC).  I believe we intend to give the SO/ACs fairly broad discretion to
establish their UAs as they see fit (including using legal entities other
than UAs, such as non-profit corporations or LLCs), while providing them
with some high level standards and guidelines so that they work as intended.

On a technical legal level, I don't believe there is a bar to having the
Members of ICANN be natural persons (i.e., people) rather than UAs acting
as alter egos for the SO/ACs.  This creates some secondary issues.  Legal
entities have Bylaws or similar rules; people don't.  So, the behavior of a
natural person acting as an alter ego for a SO/AC would have to be
regulated entirely by a contract between the SO/AC and the natural person.
With the UA, most of the rules about how the UA acts can be embodied in its
bylaws, and the contract between the SO/AC and the UA (if one is even
needed) would be much simpler.  If a natural person is a member, I think
the membership would change every time the natural person changed; so you
would have to go through a process of members resigning and joining fairly
regularly.  With the UAs, the membership would remain constant (subject to
further changes in ICANN governance and the ICANN community's structures
and organizations).  Another complication arises in considering how to
recall the board; most likely, this would require a contractual agreement
among the members to act in concert and have each SO/AC remove the board
member(s) that SO/AC appointed.  This agreement could remain constant if we
use legal entities; if we use natural persons, the agreement will need to
be amended and re-executed (at least in part), whenever there is member
turnover.  Finally, there is just the "optic" of having, e.g., Alan
Greenberg as a Member of ICANN, rather than having "ALAC Prime, an
Unincorporated Association" as a Member of ICANN.

On Tue, May 19, 2015 at 4:27 PM, Balder Sørensen <dataekspert at gmail.com>
wrote:

> Hi Greg.
>
> This comment has also confused me to:
>
> The contract between the SO/AC and the UA (if one is even needed) would be
> much simpler.
>
>
> What is the point of a contract between the SO/AC if the SO/AC is not a
> legal entity in the first place? Just asking as it make no sense.
>
> Why not keep it simple and clear in the makings from the start?
>
> Sound like a better plan, so less problems arise later.
>
> Regards
>
> Balder
>
> 2015-05-19 14:01 GMT+02:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
>
>> People have different understanding of UA
>>  It is necessary to clarify the followings:
>>
>> 1. When we refer to UA ,are we talking about  two or more(  say  three)
>> natural persons , as chair and vice chair or their representatives within
>> a SO or  an AC establishing that  UA ,?
>> OR
>> 2.When we refer to UA, we are talking about two or more  so and AC
>> establishing an UA ?
>> In case of the first one, is it necessary that UA established within that
>> SO or AC also establish another UA among themselves or it is no longer
>> necessary?
>> Regards
>> Kavouss
>>
>>
>> 2015-05-19 8:05 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:
>>
>>> Chris,
>>>
>>> Yes, I recognized this flaw myself in my follow-up email replying to Sam
>>> a few minutes ago....  Please see that email for my revised thinking.
>>>
>>> Greg
>>>
>>> On Tue, May 19, 2015 at 2:03 AM, Chris Disspain <ceo at auda.org.au> wrote:
>>>
>>>> Hi Greg,
>>>>
>>>> This comment has confused me:
>>>>
>>>> and the contract between the SO/AC and the UA (if one is even needed)
>>>> would be much simpler.
>>>>
>>>>
>>>> How can there be a contract between the SO/AC if the SO/AC is not a
>>>> legal entity?
>>>>
>>>>
>>>>
>>>>
>>>> Cheers,
>>>>
>>>>
>>>> Chris
>>>>
>>>> On 19 May 2015, at 15:19 , Greg Shatan <gregshatanipc at gmail.com> wrote:
>>>>
>>>> An Unincorporated Association (UA) requires at least two legal persons
>>>> (which can be people or legal entities) to be members.  In other words, you
>>>> need two legal persons to "associate" with each other. So, if we use UAs,
>>>> we'll need to have at least those two members in the UA, though we could
>>>> have many more.  They could be the Chair and Vice Chair, or they could be
>>>> two or more of the members of the SO/AC (or even all the members of the
>>>> SO/AC).  I believe we intend to give the SO/ACs fairly broad discretion to
>>>> establish their UAs as they see fit (including using legal entities other
>>>> than UAs, such as non-profit corporations or LLCs), while providing them
>>>> with some high level standards and guidelines so that they work as intended.
>>>>
>>>> On a technical legal level, I don't believe there is a bar to having
>>>> the Members of ICANN be natural persons (i.e., people) rather than UAs
>>>> acting as alter egos for the SO/ACs.  This creates some secondary issues.
>>>> Legal entities have Bylaws or similar rules; people don't.  So, the
>>>> behavior of a natural person acting as an alter ego for a SO/AC would have
>>>> to be regulated entirely by a contract between the SO/AC and the natural
>>>> person.  With the UA, most of the rules about how the UA acts can be
>>>> embodied in its bylaws, and the contract between the SO/AC and the UA (if
>>>> one is even needed) would be much simpler.  If a natural person is a
>>>> member, I think the membership would change every time the natural person
>>>> changed; so you would have to go through a process of members resigning and
>>>> joining fairly regularly.  With the UAs, the membership would remain
>>>> constant (subject to further changes in ICANN governance and the ICANN
>>>> community's structures and organizations).  Another complication arises in
>>>> considering how to recall the board; most likely, this would require a
>>>> contractual agreement among the members to act in concert and have each
>>>> SO/AC remove the board member(s) that SO/AC appointed.  This agreement
>>>> could remain constant if we use legal entities; if we use natural persons,
>>>> the agreement will need to be amended and re-executed (at least in part),
>>>> whenever there is member turnover.  Finally, there is just the "optic" of
>>>> having, e.g., Alan Greenberg as a Member of ICANN, rather than having "ALAC
>>>> Prime, an Unincorporated Association" as a Member of ICANN.
>>>>
>>>>
>>>> Greg
>>>>
>>>> On Tue, May 19, 2015 at 12:56 AM, Jordan Carter <
>>>> jordan at internetnz.net.nz> wrote:
>>>>
>>>>> hi all, hi Alan
>>>>>
>>>>> I think these are exactly the sorts of questions we do need to unpick.
>>>>>
>>>>> My own preference is that the UAs are almost total shells - that the
>>>>> only way they can make decisions is on the resolution of the relevant SO or
>>>>> AC council. That way, there's no need for "Representatives" to be
>>>>> appointed. The lawyers have confirmed that this approach works at a high
>>>>> level.
>>>>>
>>>>> It avoids all the concerns about who needs to be chosen etc.
>>>>>
>>>>> I really hope we can all unpick these issues to find the best model,
>>>>> one that is both enforceable, clear and simple. I'm confident we'll get
>>>>> there. We just have to wear the fact that the set of changes we are
>>>>> contemplating is going to be complicated to implement. It's once we get
>>>>> there that it has to be simple and clean.
>>>>>
>>>>> cheers
>>>>> Jordan
>>>>>
>>>>>
>>>>> On 19 May 2015 at 16:03, Alan Greenberg <alan.greenberg at mcgill.ca>
>>>>> wrote:
>>>>>
>>>>>> I believe I understand the issues regarding UAs as shadow
>>>>>> organizations for the AC/SOs. Although I still have strong reservations and
>>>>>> am not sure we need the legal enforceability that they provide, I am
>>>>>> willing to accept that they will work.
>>>>>>
>>>>>> But I also feel that using such structures will be difficult for the
>>>>>> overall community to understand (on an ongoing basis).
>>>>>>
>>>>>> I have a simple question. Instead of having a UA and the AC/SO naming
>>>>>> people to be their formal representatives in the UA, why can we not simply
>>>>>> have the AC/SO Chair or their Delegate(s) be the Members or Designators.
>>>>>> These people have legal status, so why do we need the UAs?
>>>>>>
>>>>>> I will not be able to join the call in a few hours, but will listen
>>>>>> to the recording later in the day.
>>>>>>
>>>>>> Alan
>>>>>>
>>>>>> _______________________________________________
>>>>>> Accountability-Cross-Community mailing list
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>>>>>>
>>>>>
>>>>>
>>>>>
>>>>> --
>>>>> Jordan Carter
>>>>>
>>>>> Chief Executive
>>>>> *InternetNZ*
>>>>>
>>>>> 04 495 2118 (office) | +64 21 442 649 (mob)
>>>>> jordan at internetnz.net.nz
>>>>> Skype: jordancarter
>>>>>
>>>>> *A better world through a better Internet *
>>>>>
>>>>>
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>>>>>
>>>>>
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